libel2

Gary Brolsma ("Numa Numa Guy")

Gary Brolsma is a young man from New Jersey who in December of 2004 posted a webcam video of himself lip syncing enthusiastically to "Dragostea Din Tei," a pop song by the Romanian band O-Zone. to the Internet. The "Numa Numa Dance" (named after the chorus of the song) became an instant internet phenomenon and launched him to internet fame. In a matter of months it had been viewed millions of times at its original site (Newgrounds) and mirrored and parodied at countless others and became the second most viewed internet video ever, according to the BBC. Initially, Brolsma was overwhelmed and troubled by his instant fame, sought to ignore it and wished that it would simply go away. See, Alan Fuere & Jason George, Internet Fame is a Cruel Mistres for Dancer of Numa Numa, New York Times, Feb. 26, 2005. However, he eventually embraced his online celebrity and in 2006 posted a second video to Youtube and launched NewNuma.com, a website featuring his videos, selling merchandise, and holding a contest with monetary prizes for other people posting similar videos.

Before Brolsma commercialized his internet fame, there were countlessothervideos posted that derived from it or incorporated it (sometimes merging it with other internet memes), as parodies or homages or responses to Brolsma's original video. Arguably, this could have raised RIGHT OF PUBLICITY issues. At least the numerous derivatives posted at Newgrounds were commercial enterprises (Newgrounds derives profits from them, even if the posters do not). Although Brolsma had not yet shown that his performance and likeness had commercial value (beyond the popularity it brought to Newgrounds), he had clearly achieved celebrity status, however unwelcome, on the Internet.

(Any right of publicity claim would, of course, have to deal with some fairly hefty copyright questions as well, since Brolsma's fame is due in part to his initial use of O-Zone's song which was without permission. It is unclear what relationship NewNuma.com has to O-Zone, although it provides links for purchasing their music.)

By posting the video at Newgrounds, Brolsma became a LIMITED PUBLIC FIGURE because he voluntarily entered the public forum. He therefore could not sue anyone for defamation in regards to the video. Obviously any accusations or claims made about him beyond what is evident in the video could be defamation.

Ghyslain Raza ("Star Wars Kid")

Ghyslain Raza is a French Canadian youth who also filmed a humorous video of himself. If Brolsma's video was the second most popular video on the Internet, that is because it was beaten by Raza's video of himself pretending to wield a light saber and acting out moves from the Star Wars films. This video, which led to Raza being dubbed the "Star Wars Kid," has a different origin from Brolsma's, however. Whereas Brolsma posted his video himself, Raza's was first posted to the Kazaa peer-to-peer filesharing network by classmates of his who found the videotape at school. It soon found its way on the the World Wide Web, where it gained its incredible popularity and, like Brolsma's video, spawned numerous remixes, parodies and homages. In fact, its online popularity was so great that it spread back to conventional media where it was referenced on various television shows like Arrested Development. Stephen Colbert created a segment on his popular television show of himself swinging around a light saber in front of a green screen and encouraged his viewers to edit it. Ultimately, Star Wars creator George Lucas created a special-effects-laden version of Colbert's version of Raza's video, completing the circle of pop cultural influence. Raza, however, did not appreciate all of the publicity and he and his parents sued the youths who had originally put the video online for the ridicule and torment he endured as a result of the unwanted publicity. The suits eventually settled for undisclosed amounts.

Since Raza steadfastly rejected the fame that he garnered, and since he did not seek it himself, it is difficult to imagine that he would have a RIGHT OF PUBLICITYclaim against anyone making use of his identity for commercial gain (at least one site, jedimaster.net, has done so by hosting the video and its derivatives to gain ad revenue and selling "I love Star Wars Kid" clothing). Had he embraced his fame, as Brolsma did, he may have been able to make out a case for it. It is interesting to speculate whether he would have such a case in the future, now that his antics have been proven to be commercially viable. If so, it would probably be more akin to a copyright claim (accusing others of creating derivative works of his video) than a right of publicity claim.

A DEFAMATION suit seems much more viable at first glance. The actual suit against the youths who first distributed the video was not for defamation but rather for bullying and harassment ("cyber-bullying" in fact). It occurred in Canada, so the laws are different, but under United States law, simply posting the video would not be defamation because it is demonstrably true. Nonetheless, the numerous derivatives of the video (such as a Benny Hill version and one entitled Planet of the Dorks - both at jedimaster.net) could arguably be seen as defamatory. Raza could at one point arguably claim that he was not a PUBLIC FIGURE, even in a limited sense, since his actions were completely private and he did not enter the public sphere. Once his video became a public phenomena, however, one could argue that his interventions (including the lawsuit) made him a limited public figure. It seems unfair to impute public figure status upon someone who acts in public only to protect his privacy, but defamation law is unclear on this point, and as the Internet has made it easier and more common common for others to publicize one's private life (as well as making it easier and more common for that person to respond publicly to it), the law will need to address this issue.

Allison Stokke

Allison Stokke was a pole vaulter at Newport Harbor High School in California and is now a college pole vaulter at the University of California. She is a possible future Olympian and even back in high school earned some recognition for her accomplishments, though it was largely limited to track and field enthusiasts. But, her fame soon became much more widespread. A sports photographer took a particularly attractive picture of her (at right) that he then posted as part of a report on a website about track and field at California high schools. From there, it found its way to a number of high profile sports blogs and then everywhere. Her internet fame became considerable (a Google search for Allison Stokke now returns over 224,000 hits, and at one point in the past had over 445,000) and websites from a MySpace Allison Stokke Fans page to Hot Celebrity Photos to the Unofficial Allison Stokke Fan Page (now defunct, but here is the web.archive.org link). Stokke's friends mentioned to her that her picture (along with others that people found of her, including a video interview) was plastered all over the internet and she was stunned and horrifed to find out. As one reporter put it:

Stokke read on message boards that dozens of anonymous strangers had
turned her picture into the background image on their computers. She
felt violated. It was like becoming the victim of a crime, Stokke said.
Her body had been stolen and turned into a public commodity, critiqued
in fan forums devoted to everything from hip-hop to Hollywood.

She asked her coach if he knew any media consultants, to help try to control the story, and she told her parents. She contacted Facebook to have a fake Allison Stokke profile taken down (the impostor "typed in Southern jargon and listed her interests as only 'BOYS!!!!'"). Her father, a California attorney, went on the offensive, scouring the Internet for offensive posts and seeking to protect his daughter. (See this article at Feministing.com, however, for a critique of his actions and motives). And, they gave an interview to the Washington Post, who published the article on the front page, explaining their difficult situation.

The article in the Washington Post brought even greater fame to Stokke. The Washington Post article was linked to over and over again, and commented on endlessly.Now she was being covered not only by blogs and sites intrested in sports and beautiful women but also those interested in how the Internet operates and how it affects people's lives. And, bloggers were not shy about pointing out the irony of trying to limit one's exposure by going to the media. Some even argued that it might al be calculated to gain fame, exposure, and endorsements (see this article at celebritysweating.com - there really is everything on the Internet).

Despite this, Allison Stokke has made no overt attempts to commercialize her identity, although others have, including the numerous advertisement-driven websites featuring her photographs and her hometown newspaper (who reported on the "unwanted attention") selling her photograph on coffee mugs and mousepads (as they do for numerous news photos). Nonetheless, Stokke should have a RIGHT OF PUBLICITY claim against such commercialization should she seek to pursue it, considering her status as an internet celebrity and the potential for commercial value in her identity. Note, however, that her steadfast insistence that she has not sought out this fame (at least not outside the limited realm of high school and college athletics) suggests that one of the rationales for granting her thr right of publicity (to reward and encourage the effort that goes into becoming a celebrity) does not apply.

However, Stokke has not sought to defend a right of publicity but has rather treated the whole incident as unwelcome attention. Does she have a DEFAMATION claim against anyone involved? The original photographer cannot be sued for defamation simply for posting a picture of her (nor, indeed, for invasion of privacy since it was a public sporting event), and in fact the photographer who owns the copyright in the picture probably has a copyright case against the numerous others who posted, altered it for desktops, and distributed it. Whether any of the lurid comments or articles leering at her can rise to level of defamation depends on whether they make claims that are not true, but also depends on whether Stokke is public figure or not. A professional athlete can be a General Public Figure, but it seems a bit of a stretch to suggest that participating in high school or even college athletics automatically makes one a general public figure open to al sorts of public commentary and speculation. However, Stokke is clearly a LIMITED PUBLIC FIGURE in the realm of high school and collegiate athletics. Again, this raises the question of whether addressing unwelcome public internet attention, by giving an interview to the Washington Post for example, makes one a public figure in other realms as well. (Although, unlike Raza who was only a private citizen, she was already a somewhat public figure.)

Note how Stokke's situation raises a POTENTIAL CONFLICT between Right of Publicity law and Defamation law, in the context of unwanted internet celebrity. In order to argue for Right of Publicity protection, a person in Stokke's position is better off arguing that she sought fame, while in order to argue for protection against Defamation, she would be better off arguing that she never sought the publicity. This is, of course, a reasonable balance in the traditional situation where it makes sense to reward either one's efforts to gain publicity or one's efforts to avoid it, but on the Internet, where fame is more likely to be unsought, and even unwelcome, the incompatibility is striking and creates a potential Catch-22 where any attempt to address unwelcome publicity admits that it was unsought and makes one a public figure, potentially obviating both claims.

On the other hand, perhaps Stokke has achieved what she sought out to do, with a minimum of damage. While the leering posts and websites still exist, many others ahve risen to her defense and she is known now not only for being an attractive athlete but also as a hero of unwanted celebrity. Much recent coverage of her is sympathetic, and even allisonstokke.com has become the "Fromer Unofficial Allison Stokke Fan Site" and now simply says:

Farewell.

Sorry for having
contributed to the unwanted attention, Allison. We think you're a
phenomenal athlete and wish you the best of luck in your academic and
athletic endeavors.

IANAL & TINLA: I am not a lawyer. In fact, I'm just a law student and this page started as a class
project. It should go without saying, though I'm saying it, that
nothing on this page constitutes legal advice or should be taken as
such.